October 27, 2006

Gay Marriage Timing in New Jersey

Suppose that a multimember court has decided (a) that a state must allow same-sex marriage, (b) that a state may not continue affirmative action programs, or (c) that a popular environmental statute is unconstitutional. Suppose too that the opinion is written -- and that a national election will be held in two weeks. Suppose finally that the court is aware that the ruling will have at least some degree of relevance to voters. Should the court refuse to issue the opinion until after the election?

It is worth raising this conclusion because the New Jersey ruling (not requiring the state to allow same-sex "marriage," but requiring same-sex couples to be provided with the material equivalents of marriage) was issued within two weeks of the national election, and some people believe that it will have electoral salience. As far as I am aware, there is no serious scholarship on the question whether and when it is appropriate to wait to issue a controversial ruling until after an election.

Consider two possible positions:

1. The court should issue an opinion whenever it is ready to do so. It does not matter whether an election is imminent. It is no more neutral to hold the opinion than to issue it immediately. If the court's decision is controversial, the voters deserve to know about it before they vote, not after. "Holding" an opinion is too strategic; it smacks of opportunistic behavior on the court's part, an effort to avoid electoral reprisal.

2. It is appropriate and possibly the better practice for the court not to issue a controversial opinion in the period immediately preceding an election, simply because of the risk that the timing will give the opinion undue salience, in a way that will distort the process. Of course any particular event might have such a distorting effect, if it occurs immediately before an election. But if judges can control the timing of their intervention to avoid the risk of that distorting effect, they should do so.

I tend to think that under certain circumstances, (2) is correct; but it is a reasonable objection that voters deserve to hear about the ruling when they are deciding how to vote. Whether the objection is reasonable, as opposed to right, may depend on whether the timing will improve voters' information, or instead distort the whole process by making one development especially salient.

Comments

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Some people commented that judges should be insulated from these concerns. However, many state-court judges are elected. Also, judges face real threats from wacko's whipped into a frenzy by people who hate "judicial activists." Given that any human would be impacted by outside opinion to some degree, if one truly believes an opinion should not be influenced by public opinion, a judge should wait until after an election. That way, they will feel less outside pressure. Thus, contrary to what Geoffrey R. Stone wrote, allowing for a delay would reduce partisan influences.

Some of the commenters seem to assume voters are rational actors: a new appellate decision is not simply an added bit of information to place into their voting decision matrix. Unfortunately, the swing voters seem more influenced by what they ate for breakfast than concerns over the policy implications of an election. A judicial opinion that shapes public discourse before an election can have an impact that is greater than its longer-term real-world effects.

Of course, I do recognize that the 24-hour news must talk about something; if the discourse will be otherwise shaped by sex-scandals and advertisements about terrorist wolves, perhaps it will be good that interesting opinions come out before an election.

Another problem with controversial opinions before an election is that they will be misread or used in a dishonest fashion. A judge may wish to have the outcome be reported on in a less manipulative atmosphere.

I apologize for coming late to the game, but I have not been a regular Chicago blog reader. I am, however, an appellate judge, and I have a couple thoughts. First, a point no one seems to have mentioned (although one person wrote about court personnel changes in NJ), is that the issue is much more fraught in state courts, where an opinion could be rushed out or held up because one or more of the judges may be up for election. Second, as Geof Stone notes re: Burger and Roe v. Wade, in the appellate courts I'm familiar with it's easy for one member to affect the timing of an opinion by a couple weeks either way, through a variety of otherwise legitimate strategies. Third, there are more and less legitimate reasons to time the release of an opinion -- Sunstein summarizes the appropriate arguments about timing surrounding an election, but suppose the court is going to invalidate part of a taxing statute: it doesn't seem inappropriate for the court to hurry to get it out in time for the legislature to deal with whatever revenue impact the decision may have. That said, my court (the Oregon Supreme Court) generally releases opinions when they're ready to go, which, in practice, means that the author has a significant amount of discretion over the release date. Cases have been hurried up for reasons as diverse as vacations, impending retirements, and CLE programs. Even if it did not "feel" wrong (which it would) probably the greatest deterrent to "timing" for political reasons, from the court's perspective, is the court's inability to predict what decisions will have political repercussions and shape those repercussions will take. That's not our business, and we're not very good at it.